Truth, Transparency, and the Right of Privacy | Part 1 of 3

“Truth, Transparency, and the Right of Privacy” is a three-part special:

• Synopsis: An introduction and overview to lecture. – posted November 3, 2020
• Part 1 (this podcast): What does truth mean today? – posted November 10, 2020
• Part 2: Lessons learned as the Chair of the Financial Action Task Force (FATF) – posted November 17, 2020
• Part 3: Balancing attorney-client privilege and an individual’s right to privacy – posted November 24, 2020

“Truth, Transparency and the Right of Privacy,” that’s the subject of today’s ACTEC Trust and Estate Talk.

Transcript/Show Notes

This is Susan Snyder, ACTEC Fellow from Chicago. Welcome to a special lecture series featuring Duncan Osborne, ACTEC Fellow from Austin, Texas. Duncan is a past president of ACTEC, and he presented the annual Trachtman Lecture in front of a live audience at ACTEC’s annual meeting in March of 2020. We have broken his 90-minute lecture Truth, Transparency and the Right of Privacy into 3 episodes. In this first episode, Duncan shares stories and explains what truth means to him. In Part 2, he will discuss his experience with the Financial Action Task Force, FATF, and transparency within law and government. In the final part, Duncan will express his views on the attorney-client relationship and an individual’s right to privacy. And now, ACTEC President Jack Terrill will introduce Duncan Osborne.

Introduction by John A. Terrill, II

Good morning. It gives me great pleasure to be on the podium today introducing the 2020 Joseph Trachtman Lecturer. In my almost 30 years as a Fellow of ACTEC I have attended probably a dozen or more Trachtman lectures, each of which has left a lasting impression on me, and I know with the others who have attended. I am confident that today, with the great-great grandson of Herman Melville, will be no exception.

Our speaker today is someone well known to most of you. Duncan Elliott Osborne has been a Fellow of the College since 1984, when he was a child. During those going on 40 years he has served in many capacities. He chaired the International Estate Planning Committee; he chaired with distinction the FATF Task Force; he was a member of and involved with many aspects, committee aspects, in the life of the College. A frequent speaker.

Duncan is prolific on the topics that interest him, one of which we will hear about today – and also, a variety of International and Tax issues in addition to Asset Protection Planning and FATF. Duncan became an officer of the College in 2009 and was president during the 2013 and 2014 College year. His involvement in the leadership of STEP, the International Academy, the ABA Real Property, Probate and Trust Law Section were and continue to be significant. He really is a man for all seasons.

Duncan has been a close, personal, and professional friend to me. I view him as my mentor at ACTEC, and he honors me. I give you Duncan Osborne.

What is Truth?

Goodness gracious Jack, back to the drawing board after that.

Jack, before I begin, I have a couple of stories I want to share. They are stories about Texas lawyers and they are favorite stories of mine, but to have them make real sense to you I need to put them in a certain geographical context. When I was a little boy growing up in West Texas, my grandmother explained to me, she said “Duncan, it doesn’t rain on the west side of the 100th meridian.” And this is during the drought of the 50s and it wasn’t raining. And so, the 100th meridian is—well, now I am really messing up—is right on that line. If you drop that line straight down on that north–south border with Oklahoma, it is more or less the 100th meridian. And this map doesn’t show it very well, but it is much greener on the eastern two thirds of that map than it is on the western one third. And so, that’s why all the people in the state live on the eastern side of the state, and that’s why you have all the big cities over there. And that is why you have forests and flowers and gardens and landscaping. Over on the west side, the towns and the cities seem to be or tend to be challenged by dust, challenged by wind. Their streets are graced by tumbleweeds. If they have a tree, it is likely to be a mesquite. If they have a flower, it is likely to be a bloom on a prickly pear of cactus.

There are two cities in particular you can see on that Western one third, Midland and Odessa. Midland and Odessa are there really for just one purpose: to serve a great underground sea of oil called the Permian Basin. And so, in Midland you have all the fat cats. You have the men and women who make the big deals, who make the big bucks, who lose the big bucks, and they are there with their lawyers, and their bankers, and their accountants, and their investment bankers. Odessa, on the other hand, is the blue-collar town. The people that live there do the heavy lifting, the roustabouts and the roughnecks and the pumpers and the welders and the truck drivers. And as you can imagine, there is a fair amount of rivalry between these two cities.

The first story I want to tell is about a lawyer from Midland, a man by the name Robert Bledsoe. There is a law firm in Midland called Cotton Bledsoe Tighe & Dawson, and it is the premier, or one of the premier oil and gas firms in the state. Robert Bledsoe was one of the founding partners of that firm, and he was honored last year for his service to the industry, for his service to his profession, and for his service to his community. He is now probably close to 90, if not 90. But truly, a wonderful man and a great lawyer; but they asked him to say a few words on the occasion of his being honored. So, he gets up there and he says, “Well I grew up in Marfa, and Marfa is sort of down there, a little bit east of Fort Stockton, and it is a dusty little West Texas town.” And he said, “Growing up we were dirt poor. We didn’t have anything, but we didn’t  know we didn’t have anything because nobody else had anything either. But one day, our neighbor across the street came home with a brand new, black Chevrolet. I was six-seven years old, and I thought it was the most beautiful thing I had ever seen in my life. And I went home and I said, “Daddy, we got to have ourselves a black Chevrolet.” And my daddy said, “Bobby, we do not have that kind of money. We cannot afford a new black Chevrolet. We cannot afford a new automobile at all.” Well, that about just broke my heart. I stewed on it for a couple of days and then one night, right after dark, I strapped on my six shooter, my cap gun. I stole a 10 penny nail from my daddy’s work bench. I went across the street, and right underneath the window on the driver’s side on that brand new, black paint job I wrote “Bobby Bledsoe.” My daddy and I were talking about that years later, and he said, “Bobby, I could hardly keep from laughing while I was whooping you, particularly when you looked up at me with tears running down your face and said, “Daddy, how did they know it was me?”

My other story is about a plaintiff’s lawyer from Odessa. A man who grew up in Odessa and he was a trial lawyer and one of the best ever. His name was Warren Burnett, and he was gifted. He was magical with juries, and with excuses and pardons to people like Larry Ottaway. Some of my plaintiffs’ friends have had challenges with the bottle and challenges with women, and Warren Burnett fit into that category. But he had a yellow lab that went with him everywhere — a big yellow lab that rode shotgun everywhere he went. And he is speeding across West Texas one of these days, one of these afternoons, and he gets pulled over. But before the cop can get to the window, he switches places with the dog. The cop gets to the window and as you can imagine, he is thunderstruck. He is speechless. He cannot think of anything to say. Warren Burnett has got this gravelly voice; he leans over and goes, “Officer, I am so glad you stopped us. I have been trying to get him to slow down.” I think the dog got a warning.

When Jack Terrill asked me to give the Trachtman lecture, the first thing I did was consult with my wife Betty. Many of you know Betty and know her to be a woman of strong opinions. She offered the following advice: talk about something everyone in the audience understands, keep it short, and do not talk about yourself. I expect there is going to be hell to pay. This is a recounting of a personal odyssey. It is my own deep dive into the right of privacy and into the consequences of available information and transparency in the world in which we find ourselves today. Appropriately enough, this journey was launched by work I was asked to do for the American College of Trust and Estate Counsel.

Before I share with you the actual origins of this trip, I want to say a word about truth because my preoccupation with privacy was initially inspired by my obsession with the truth. Truth is at the heart of this journey. And in our world today, the whole concept of what constitutes truth seems to be unresolved. The facility and irresponsibility with which facts are distorted and fabricated is reaching unprecedented levels. Perhaps the most ongoing, invisible violators of the truth are politicians. But abuse of the facts in our society is pervasive, and this problem is not limited to the political sphere. We have seen information manipulated, hidden, and distorted by the media, by the church, by academics, etcetera. The list goes on. The result is an environment in which individuals no longer trust expertise or our institutions. I submit that this is ultimately a threat to our democratic processes. The departure from the truth, from reality, inevitably leads to wrong-headed decisions and conclusions. How can we possibly organize as a society, resolve differences and work toward a better future if we cannot even agree on simple reality? Actions based on false information are not only irresponsible but potentially dangerous.

As lawyers, this development is particularly troubling, especially when you consider our calling. What is our role here? I submit to you that lawyers are the ultimate guardians of the truth. I repeat, lawyers are the ultimate guardians of the truth. What is the very first lesson that we learned in law school? And what was drummed into our heads for the next three years? Facts. What are the facts of the case? Case law starts with facts. It depends on truth. And when first asked to brief a case, the professor wanted you to begin by reciting what happened.

Not only did the truth dominate every case you ever read or briefed, we learn that there were very strict rules to ensure that the truth was not perverted, distorted, or fabricated. That is why we learn the rules of evidence; that is why we learn the rules of procedure. That is why virtually every case, at its essence, originates with finding of facts before you get to the conclusions of law. As lawyers, truth is part of the essence of our profession. Our profession is an honorable one, but with honor and stature comes responsibility. I do believe that the rule of law still carries weight, and perhaps more than ever today, one of the most important burdens we bear is unequivocal commitments to the truth and to the rule of law. We cannot stand by and let policymakers act on fictional facts or let waves of misinformation and disinformation drive deeper wedges into our already fractured society. We will have opportunities from time to time, and we can question assertions when these opportunities arise. When these opportunities do arise, we should make our voices heard; and with emphasis, we should always stand for and defend the truth and the rule of law. This responsibility to the truth brings to the forward the issue of transparency. Indeed, is not transparency the handmaiden of truth? Does not transparency always serve to shine a bright light on the facts? Transparency has its place, but it should also have its limits.

And I have come to believe that for ensuring the truth, perhaps the protection of privacy is every bit as important as the role of transparency.

This concludes part one of three in our special ACTEC lecture Truth, Transparency and the Right of Privacy. Please join us for a next episode in the series which will discuss Duncan’s experience with the Financial Action Task Force, FATF, and transparency within the law and government. Thank you for listening to this podcast.

Listen to Truth, Transparency and the Right of Privacy Part 2 of 3

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